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Terminating An Employee - Part I 
 


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AVOID BEING SUED FOR FIRING AN EMPLOYEE


PART I - The Laws that Restrict Hiring and Firing Practices

PART II - Contract Restrictions on Employee Termination.


PART I - The Laws that Restrict Hiring and Firing Practices

In any business you may encounter difficult employees leading many human resource managers to lament "its so hard to find good help these days." Difficult employees may have difficulty coming to work on time, have volatile tempers or simply under perform their duties. It is important for the human resource managers to have a working knowledge of employment law before terminating such an employee. Doing it the wrong way or for the wrong reason may expose your business to costly lawsuits.

Under the law all employment relationships begin as "at will" relationships. This means that the employee may quit at any time and the employer may terminate the employee at any time. This "at will" relationship may be modified by two things: Statutory constraints; or Contract constraints. In Part I - we will deal with the statutory constraints. Part II will address contract restrictions.

Statutory Constraints.

Your local, state and federal government may pass laws which restrict the employers ability to terminate an employee. The most common restrictions relate to terminations occurring for what legislators have determined to be discriminatory or bad motives.

CERTAIN CLASSIFICATIONS PROTECTED

There are a number of local, state and federal laws that protect specific classes of individual from discriminatory hiring or firing based on their classification. These classifications including restrictions against discriminating on the basis of race, sex, color, disability, religion, age, sexual preference, national origin, ancestry, marital status, and even financial considerations if the employee is receiving public assistance.

In Minnesota, the applicable state and local laws protecting against class discrimination include the following:

  • MINNEAPOLIS CIVIL RIGHTS ORDINANCE 139.40: Protects employees against discrimination based on the following classifications:
Sex Age Ancestry
Race Color Sexual preference
Marital status Religion Disability
National Origin Creed Public Assistance
  • ST PAUL HUMAN RIGHTS ORDINANCE TITLE XVIII, Ch. 83, 183 -184: Protects employees against discrimination based on the following classifications:
Sex Age Ancestry
Race Color Sexual preference
Marital status Religion Disability
National Origin Creed Public Assistance
  • MINNESOTA HUMAN RIGHTS ACT, MSA 363.02: Protects employees against discrimination based on the following classifications:
Sex Age Ancestry
Race Color Membership activity
Marital status Religion Disability
National Origin Creed Public Assistance

Federal restrictions may also apply. There are a number of federal statutes that also prohibit discrimination based on class. However, these statutes apply only to larger companies having 25 or more employees. These statutes include the following:

  • AMERICANS WITH DISABILITIES ACT, (ADA) 42 U.S.C. 12101-12213: The ADA broadly prohibits discrimination on the basis of a disability and requires employers to make reasonable accommodations for employees with disabilities.
  • VETERANS REEMPLOYMENT ACT, 38 U.S.C. 2021: This requires employers to rehire returning veterans (including reservists) at their former jobs with the benefits they would have had had they not left to enter the service. This Act goes on to prohibit employers from discharging and veteran without cause within one year of the veteran's return from military service.
  • THE AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA), 29 U.S.C. 621: The ADEA protects employees age 40 or older from age discrimination of they employ 20 or more employees in each of 20 or more weeks the preceding calendar year.
  • THE EQUAL PAY ACT, 29 U.S.C. 206(d) and MSA 181.66: Protects all employees from paying different wages to employees of the opposite sex for equal work on jobs requiring the same skill, effort, and responsibility and which are preformed under similar working conditions.
  • CIVIL RIGHTS ACT, 42 U.S.C. 2000e: Protects employees of an employer against discrimination based on the following classifications:
Sex National origin Religion
Race Color

RESTRICTIONS BASED ON WRONGFUL MOTIVE

  • REPRISAL IS PROHIBITED: Employees are protected against reprisals against the employee for complaints related to discrimination or harassment. Minnesota Statutes 363.01 - prohibits reprisals based on complaints of discrimination. Additionally a state and federal Whistle Blower statute exists which not only protects employees from reprisals for reporting employer misconduct, it may also reward the employee in certain situations with financial payments.
  • PROTECTION FOR EMPLOYEES EXERCISING STATUTORY RIGHTS: Employees are protected if they are exercising certain recognized statutory rights which include the following:
  1. Parental Leave. Taking parental leave pursuant to MSA 181.941
  2. Worker's Compensation. Filing a Workers Compensation claim under MSA 176.001
  3. Wage and Hour Violations. Complaining of wage and hour violations such as overtime pay is protected under both state and federal law - 29 USC 215 and MSA 177.21.
  4. Labor Activities. Involvement in an organized labor activity is protected under federal and state law - 29 USC 158 and MSA 179.12.
  5. OSHA. Complaining of environmental concerns or violations is also protected under state and federal law. 29 USC 651 and MSA 182.65.
  6. Retirement and Welfare Benefits (ERISA). Asserting a right to retirement and other employee benefits is a protected activity.
  7. Requesting a Review of Personnel File. An employee is entitled to review a copy of their personnel file at any time. They are also entitled to add any explanations to the file that they deem necessary. There are strict time lines for providing access to a requested file and there can be no reprisals for the request.

IT IS IMPORTANT TO HAVE A HUMAN RESOURCE AND EMPLOYEE HANDBOOK TO AVOID CONFUSION ON THESE ISSUES.

In the event a disgruntled worker does initiate a lawsuit, the services of a electronic discovery and legal hold attorney may be necessary.


GO TO PART II


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